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CAUSE NO. 2005-7341 5
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§
FRANK GUTIERREZ, INDIVIDUALLY § IN THE oistridftiug Oo Zz
AND AS REPRESENTATIVE OF THE § oi
oa 2a
ESTATE OF THERESA GUTIERREZ Sars
AND AS NEXT FRIEND OF MICHELLE n=
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GUTIERREZ, A MINOR, AMANDA I
ey i
GUTIERREZ, FRANK GUTIERREZ, JR Ia
AND PATRICIA RAMIREZ
v Sz St
az
VS. HARRIS COUNTY, TEXAS
UNIVERSITY OF TEXAS HEALTH
SCIENCE CENTER AT HOUSTON 11TH JUDICIAL DISTRICT
DEFENDANT UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER
AT HOUSTON’, NO-EVIDENC! TION FOR SUMMARY JUDGME
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant, the UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER
AT HOUSTON (UTHSCH), and files this its No-Evidence Motion for Summary Judgment
pursuant to TEXAS RULES OF CIVIL PROCEDURE 166a(i). Based upon the uncontroverted facts and
law herein discussed and upon the pleadings and lack of evidence, Defendant will demonstrate
there is no genuine issue as to any material fact concerning the issues described below ve
Defendant therefore is entitled to judgment as a matter of law.
1
INTRODUCTION
This is a health care liability claim brought by Plaintiffs Gutierrez against:Defendant
UTHSCH pursuant to Chapters 74 and 101 of the Texas Civil Practices and Remedies Code.
Plaintiffs have asserted medical malpractice claims against UTHSCH for damages they allege
were suffered from the medical care and treatment of Mrs. Theresa Gutierrez, deceased, on or
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
about September 9, 2003. Because there is no evidence to support the element of proximate
causation, one of the required elements of Plaintiffs’ claims, UTHSCH is entitled to summary
judgment.
IL.
FA BA KGROUND & PLAINTIFFS’ ALLEGATIONS
Plaintiffs Gutierrez originally filed their medical malpractice suit on November 18, 2005
against multiple defendants. See Plaintiffs’ Original Petition, attached and incorporated as Exhibit
“A.” Subsequently, Plaintiffs amended their suit, asserting medical malpractice negligence claims
against Defendant UTHSCH only. See Plaintiffs’ Second Amended Original Answer, attached and
incorporated as Exhibit “B.” In their latest petition, Plaintiffs claim that an employee of
UTHSCH committed medical malpractice in providing emergency medical care and treatment to
Mrs. Theresa Gutierrez on or about September 9, 2003.
Mrs. Gutierrez was involved in a motor vehicle accident on September 7, 2003 resulting
in severe injuries. See Exhibit “B.” She was transported to North East Hospital for initial
emergency treatment and then transferred to Memorial Hermann Hospital. See id. On September
9, 2003, while recovering from her injuries, Mrs. Gutierrez’s condition began to deteriorate and
aUTHSCH doctor attempted emergency care. See id. During this emergency care, Mrs. Gutierrez
lost consciousness and died. See id. Plaintiffs, Mrs. Gutierrez’s husband and children, brought
this suit seeking personal injury damages for the alleged medical malpractice of UTHSCH
employees during the care and treatment of Mrs. Gutierrez. See id.
On October 18, 2006, UTHSCH served written discovery on Plaintiffs, including Requests
for Disclosure. See Defendant UTHSCH’s Request for Disclosure, attached and incorporated as
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 2
Exhibit “C.” At the time of the filing of this motion and after three (3) extensions of the deadline
to file their responses, Plaintiffs have failed to serve on UTHSCH their responses. See Rule 11
Agreements, attached and incorporated as Exhibit “D.” Additionally, this case is set for jury trial
on March 5, 2007, and the applicable discovery deadline and deadline to designate expert
witnesses according to the Court’s Docket Control Order and the Texas Rules of Civil Procedure
has passed. See Court’s Docket Control Order, attached and incorporated as Exhibit “E.”
It.
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD OF REVIEW
UNDER RULE 166a(i)
Rule 166a(i) of the Texas Rules of Civil Procedure provides that after adequate time for
discovery, a party may move for summary judgment on the ground that there is no evidence of one
or more essential elements of a claim or defense on which the adverse party would have the
burden of proof at trial. See TEX. R. Civ. P. 166a(i). The movant need not offer evidence in
support of the request for summary judgment, and the court must grant the no-evidence motion
unless the respondent produces summary judgment evidence raising a genuine issue of material
fact. See id.
With regard to adequate time, Courts have ruled that a discovery period of at least seven
(7) months is adequate before a no-evidence motion for summary judgment is filed. Morehouse
v. Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex. App.—San Antonio 2002, no pet.); In re
Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, no pet.); Restaurant
Teams Int'l v. MG Sec. Corp., 95 8.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.). Obviously,
when the discovery period has closed, a no-evidence motion for summary of judgment is timely.
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 3
Accordingly, since the discovery period in this case has closed and the time to file Plaintiffs’
expert designations has passed, this Court should grant summary judgment if there is no evidence
as to the element of proximate causation, one of the required elements for recovery for Plaintiffs’
medical malpractice negligence claims, against UTHSCH.
Iv.
ARGUMENT & AUTHORITIES
To establish negligence in a medical malpractice case under Chapters 74 and 101 of the
Texas Civil Practices and Remedies Code, Plaintiffs must prove, by a preponderance of the
evidence, the following elements: (1) the existence of a duty; (2) a breach of that duty; (3)
proximate causation between the breach of duty and all alleged injuries; and (4) damages. Duff
v. Yelin, 751 S.W.2d 175 (Tex. 1988); Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977). To
establish proximate cause, Plaintiffs must prove forseeability and cause-in-fact. Travis v. City
of!Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Bradley v. Rogers, 879 S.W. 2d 947, 953 (Tex.App.
- Houston [14th Dist.] 1994, writ denied). Cause-in-fact is established by showing that the
negligence is a substantial factor in bringing about the harm and without which the harm would
not have occurred. Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993). In other
words, it must be shown that "but for" the negligence, the injury would not have occurred. Greene
v. Thiet, 846 S.W.2d 26, 30 (Tex.App. -San Antonio, 1992, writ denied). Cause in fact is not
established where the defendant's negligence does no more than furnish a condition which makes
the injuries possible. Doe v. Boys Clubs of Greater. Dallas, Inc., 907 S.W.2d 472, 477 (Tex.
1995).
In medical malpractice cases, the causal connection between the negligence and the injury
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 4
must be based on expert testimony establishing "the reasonable medical probability" not by mere
conjecture, speculation or possibility. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511
(Tex. 1995); Crocker v. Paulyne’s Nursing Home, 95 S.W.3d 416, 421 (Tex. App.—Dallas 2002,
no pet.); Davis v. Manning, 847 S.W.2d 446, 449 (Tex. App. — Houston [14th Dist.] 1993, no
writ). Additionally, other possible causes of the injury must be ruled out with reasonable
certainty. Helm v. Swan, 61 S.W. 3d 493, 497-98 (Ti ex.App.-San Antonio 2001, pet. denied). If
no medical expert to provide expert testimony is presented, the element of proximate causation
in a medical malpractice case cannot proven. Crocker; 95 S.W.3d at 421.
Under the Court’s Docket Control Order and the Texas Rules of Civil Procedure, Plaintiffs
were required to designate a medical expert either 30 days after they were served with Requests
for Disclosure or 90 days before the end of discovery period, whichever is later. TEX. R. Civ. P.
195.2. In this case, according to the Court’s Docket Control Order and the Rules, the discovery
period ended on February 5, 2007, and by agreement, Plaintiffs’ responses
to Disclosures were due
no later than December 29, 2006. See Exhibits “D” & “E;” TEx. R. Clv. P. 190.3. Consequently,
Plaintiffs were required to designate their medical expert witness no later than December 29, 2006.
As of the date of the filing of this motion, Plaintiffs have failed to designate any expert witnesses
and are barred from doing so at this time.
Vv.
CONCLUSION
As demonstrated above, Plaintiffs have failed to designate a medical expert according to
the Court’s Docket Control Order and the Rules. As a result, they cannot present the medical
expert testimony required to prove proximate causation in their medical malpractice negligence
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 5
claims. Accordingly, Plaintiffs have no evidence of proximate causation, a required element in
their claims against Defendant UTHSCH, and therefore their suit against UTHSCH must be
dismissed with prejudice as a matter of law.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant the UNIVERSITY OF TEXAS
HEALTH SCIENCE CENTER AT HOUSTON, respectfully requests that the Court grant its No-
Evidence Motion for Summary Judgment and this case be dismissed with prejudice. Defendant
further requests that all costs of court be adjudged against the Plaintiffs and that Defendant be
granted attorney’s fees. Defendant further prays for any and all other relief, both general and
special, at law and in equity, to which it may show itself justly entitled.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
DAVID S. MORALES
Deputy Attorney General for Civil Litigation
NELLY R. HERRERA
Chief, Tort Litigation Division
JASON WARNER
Assistant Attorney General
Tort Litigation Division
State Bar No. 24028112
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 6
512.463.2197
FAX 512.463.2224
T) F INFE! E
COMES NOW, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
HOUSTON, Defendant in the above styled and numbered cause, represented y and through Gregg
Abbott, Attorney General of Texas, and certifies that Plaintiffs and Defendant have conferred with
each other and in good faith have attempted to resolve the matter concerning the No Evidence
Motion For Summary Judgment. No agreement between the parties was reached; therefore, the
matter is presented to the Court for determination.
IN W. ER
Assistant Attorney General
CER’ TE OF SERVI
I hereby certify that a true and correct copy of the foregoing was forwarded to opposing
counsels of record herein by Facsimile and by U.S. Certified Mail, Return Receipt Requested,
on this the (€7l day of 2007, at the following addresses
Abraham Moss
MOSS LAW OFFICE
5250 S. Staples, Suite 209
Corpus Christi, Texas 78411
JAS WARNER
As it Attorney General
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 7
AFFIDAVIT
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this the | 5 day of. February >
2007, personally appeared Jason Warner before me, and said as follows
“My name is Jason Warner, I am of sound mind, over 18 years of age and fully qualified
to make this affidavit. I am the attorney of record for the UNIVERSITY OF TEXAS HEALTH
SCIENCE CENTER AT HOUSTON (UTHSCH). I have personal knowledge of the facts
contained. The attached Exhibits to Defendant UTHSCH’s No-Evidence Motion for Summary
Judgment are true and correct as follows
Exhibit “A” represents a true and correct copy of Plaintiffs Original Petition;
Exhibit “B” represents a true and correct copy of Plaintiff's Second Amended Original
Petition:
Exhibit “C ” represents a true and correct copy of Defendant UTHSCH’s Requests for
Disclosure to Plaintiffs;
Exhibit “D” represents a true and correct copy of the Rule 11 Agreements regarding
UTHSCH’s Discovery Requests; and
Exhibit “E” represents a true and correct copy of the Court’s Docket Control Order.
l
Further, Affiant sayeth not.”
J IN WARNER
SWORN AND SUBSCRIBED TO BEFORE ME, this [sh day of February
2007.
.
&
SRR UR RRR
CYNTHIA MINNICK »
Notary Public, State ofTexas
My Commission Explres .
NOTARY PUBLIC in and for the
JANUARY 19, 2009 ©
“aun SED ESR ee STATE OF TEXAS
Notary fihout Bond
Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 8
Preview
- DS « CAUSE NO. 2005-7341 5 o~ § FRANK GUTIERREZ, INDIVIDUALLY § IN THE oistridftiug Oo Zz AND AS REPRESENTATIVE OF THE § oi oa 2a ESTATE OF THERESA GUTIERREZ Sars AND AS NEXT FRIEND OF MICHELLE n= Loe GUTIERREZ, A MINOR, AMANDA I ey i GUTIERREZ, FRANK GUTIERREZ, JR Ia AND PATRICIA RAMIREZ v Sz St az VS. HARRIS COUNTY, TEXAS UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON 11TH JUDICIAL DISTRICT DEFENDANT UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON’, NO-EVIDENC! TION FOR SUMMARY JUDGME TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant, the UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON (UTHSCH), and files this its No-Evidence Motion for Summary Judgment pursuant to TEXAS RULES OF CIVIL PROCEDURE 166a(i). Based upon the uncontroverted facts and law herein discussed and upon the pleadings and lack of evidence, Defendant will demonstrate there is no genuine issue as to any material fact concerning the issues described below ve Defendant therefore is entitled to judgment as a matter of law. 1 INTRODUCTION This is a health care liability claim brought by Plaintiffs Gutierrez against:Defendant UTHSCH pursuant to Chapters 74 and 101 of the Texas Civil Practices and Remedies Code. Plaintiffs have asserted medical malpractice claims against UTHSCH for damages they allege were suffered from the medical care and treatment of Mrs. Theresa Gutierrez, deceased, on or RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging about September 9, 2003. Because there is no evidence to support the element of proximate causation, one of the required elements of Plaintiffs’ claims, UTHSCH is entitled to summary judgment. IL. FA BA KGROUND & PLAINTIFFS’ ALLEGATIONS Plaintiffs Gutierrez originally filed their medical malpractice suit on November 18, 2005 against multiple defendants. See Plaintiffs’ Original Petition, attached and incorporated as Exhibit “A.” Subsequently, Plaintiffs amended their suit, asserting medical malpractice negligence claims against Defendant UTHSCH only. See Plaintiffs’ Second Amended Original Answer, attached and incorporated as Exhibit “B.” In their latest petition, Plaintiffs claim that an employee of UTHSCH committed medical malpractice in providing emergency medical care and treatment to Mrs. Theresa Gutierrez on or about September 9, 2003. Mrs. Gutierrez was involved in a motor vehicle accident on September 7, 2003 resulting in severe injuries. See Exhibit “B.” She was transported to North East Hospital for initial emergency treatment and then transferred to Memorial Hermann Hospital. See id. On September 9, 2003, while recovering from her injuries, Mrs. Gutierrez’s condition began to deteriorate and aUTHSCH doctor attempted emergency care. See id. During this emergency care, Mrs. Gutierrez lost consciousness and died. See id. Plaintiffs, Mrs. Gutierrez’s husband and children, brought this suit seeking personal injury damages for the alleged medical malpractice of UTHSCH employees during the care and treatment of Mrs. Gutierrez. See id. On October 18, 2006, UTHSCH served written discovery on Plaintiffs, including Requests for Disclosure. See Defendant UTHSCH’s Request for Disclosure, attached and incorporated as Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 2 Exhibit “C.” At the time of the filing of this motion and after three (3) extensions of the deadline to file their responses, Plaintiffs have failed to serve on UTHSCH their responses. See Rule 11 Agreements, attached and incorporated as Exhibit “D.” Additionally, this case is set for jury trial on March 5, 2007, and the applicable discovery deadline and deadline to designate expert witnesses according to the Court’s Docket Control Order and the Texas Rules of Civil Procedure has passed. See Court’s Docket Control Order, attached and incorporated as Exhibit “E.” It. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD OF REVIEW UNDER RULE 166a(i) Rule 166a(i) of the Texas Rules of Civil Procedure provides that after adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. See TEX. R. Civ. P. 166a(i). The movant need not offer evidence in support of the request for summary judgment, and the court must grant the no-evidence motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. See id. With regard to adequate time, Courts have ruled that a discovery period of at least seven (7) months is adequate before a no-evidence motion for summary judgment is filed. Morehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex. App.—San Antonio 2002, no pet.); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, no pet.); Restaurant Teams Int'l v. MG Sec. Corp., 95 8.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.). Obviously, when the discovery period has closed, a no-evidence motion for summary of judgment is timely. Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 3 Accordingly, since the discovery period in this case has closed and the time to file Plaintiffs’ expert designations has passed, this Court should grant summary judgment if there is no evidence as to the element of proximate causation, one of the required elements for recovery for Plaintiffs’ medical malpractice negligence claims, against UTHSCH. Iv. ARGUMENT & AUTHORITIES To establish negligence in a medical malpractice case under Chapters 74 and 101 of the Texas Civil Practices and Remedies Code, Plaintiffs must prove, by a preponderance of the evidence, the following elements: (1) the existence of a duty; (2) a breach of that duty; (3) proximate causation between the breach of duty and all alleged injuries; and (4) damages. Duff v. Yelin, 751 S.W.2d 175 (Tex. 1988); Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977). To establish proximate cause, Plaintiffs must prove forseeability and cause-in-fact. Travis v. City of!Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Bradley v. Rogers, 879 S.W. 2d 947, 953 (Tex.App. - Houston [14th Dist.] 1994, writ denied). Cause-in-fact is established by showing that the negligence is a substantial factor in bringing about the harm and without which the harm would not have occurred. Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993). In other words, it must be shown that "but for" the negligence, the injury would not have occurred. Greene v. Thiet, 846 S.W.2d 26, 30 (Tex.App. -San Antonio, 1992, writ denied). Cause in fact is not established where the defendant's negligence does no more than furnish a condition which makes the injuries possible. Doe v. Boys Clubs of Greater. Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). In medical malpractice cases, the causal connection between the negligence and the injury Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 4 must be based on expert testimony establishing "the reasonable medical probability" not by mere conjecture, speculation or possibility. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Crocker v. Paulyne’s Nursing Home, 95 S.W.3d 416, 421 (Tex. App.—Dallas 2002, no pet.); Davis v. Manning, 847 S.W.2d 446, 449 (Tex. App. — Houston [14th Dist.] 1993, no writ). Additionally, other possible causes of the injury must be ruled out with reasonable certainty. Helm v. Swan, 61 S.W. 3d 493, 497-98 (Ti ex.App.-San Antonio 2001, pet. denied). If no medical expert to provide expert testimony is presented, the element of proximate causation in a medical malpractice case cannot proven. Crocker; 95 S.W.3d at 421. Under the Court’s Docket Control Order and the Texas Rules of Civil Procedure, Plaintiffs were required to designate a medical expert either 30 days after they were served with Requests for Disclosure or 90 days before the end of discovery period, whichever is later. TEX. R. Civ. P. 195.2. In this case, according to the Court’s Docket Control Order and the Rules, the discovery period ended on February 5, 2007, and by agreement, Plaintiffs’ responses to Disclosures were due no later than December 29, 2006. See Exhibits “D” & “E;” TEx. R. Clv. P. 190.3. Consequently, Plaintiffs were required to designate their medical expert witness no later than December 29, 2006. As of the date of the filing of this motion, Plaintiffs have failed to designate any expert witnesses and are barred from doing so at this time. Vv. CONCLUSION As demonstrated above, Plaintiffs have failed to designate a medical expert according to the Court’s Docket Control Order and the Rules. As a result, they cannot present the medical expert testimony required to prove proximate causation in their medical malpractice negligence Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 5 claims. Accordingly, Plaintiffs have no evidence of proximate causation, a required element in their claims against Defendant UTHSCH, and therefore their suit against UTHSCH must be dismissed with prejudice as a matter of law. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant the UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, respectfully requests that the Court grant its No- Evidence Motion for Summary Judgment and this case be dismissed with prejudice. Defendant further requests that all costs of court be adjudged against the Plaintiffs and that Defendant be granted attorney’s fees. Defendant further prays for any and all other relief, both general and special, at law and in equity, to which it may show itself justly entitled. Respectfully submitted, GREG ABBOTT Attorney General of Texas KENT C. SULLIVAN First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Civil Litigation NELLY R. HERRERA Chief, Tort Litigation Division JASON WARNER Assistant Attorney General Tort Litigation Division State Bar No. 24028112 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 6 512.463.2197 FAX 512.463.2224 T) F INFE! E COMES NOW, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Defendant in the above styled and numbered cause, represented y and through Gregg Abbott, Attorney General of Texas, and certifies that Plaintiffs and Defendant have conferred with each other and in good faith have attempted to resolve the matter concerning the No Evidence Motion For Summary Judgment. No agreement between the parties was reached; therefore, the matter is presented to the Court for determination. IN W. ER Assistant Attorney General CER’ TE OF SERVI I hereby certify that a true and correct copy of the foregoing was forwarded to opposing counsels of record herein by Facsimile and by U.S. Certified Mail, Return Receipt Requested, on this the (€7l day of 2007, at the following addresses Abraham Moss MOSS LAW OFFICE 5250 S. Staples, Suite 209 Corpus Christi, Texas 78411 JAS WARNER As it Attorney General Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 7 AFFIDAVIT THE STATE OF TEXAS § COUNTY OF TRAVIS § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this the | 5 day of. February > 2007, personally appeared Jason Warner before me, and said as follows “My name is Jason Warner, I am of sound mind, over 18 years of age and fully qualified to make this affidavit. I am the attorney of record for the UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON (UTHSCH). I have personal knowledge of the facts contained. The attached Exhibits to Defendant UTHSCH’s No-Evidence Motion for Summary Judgment are true and correct as follows Exhibit “A” represents a true and correct copy of Plaintiffs Original Petition; Exhibit “B” represents a true and correct copy of Plaintiff's Second Amended Original Petition: Exhibit “C ” represents a true and correct copy of Defendant UTHSCH’s Requests for Disclosure to Plaintiffs; Exhibit “D” represents a true and correct copy of the Rule 11 Agreements regarding UTHSCH’s Discovery Requests; and Exhibit “E” represents a true and correct copy of the Court’s Docket Control Order. l Further, Affiant sayeth not.” J IN WARNER SWORN AND SUBSCRIBED TO BEFORE ME, this [sh day of February 2007. . & SRR UR RRR CYNTHIA MINNICK » Notary Public, State ofTexas My Commission Explres . NOTARY PUBLIC in and for the JANUARY 19, 2009 © “aun SED ESR ee STATE OF TEXAS Notary fihout Bond Guiterrez/Pleadings/UTHSCH’s No-Evidence Motion for Summary Judgment Page 8